This article was originally printed in the Autumn 2013 edition of ‘Minority Rights Now’, which looked at different aspects of the Convention on the Elimination of Discrimination Against Women. Given the recent developments in the legal aid debate, we have reprinted it here.
One of the functions of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and other human rights treaties, is to hold Governments to account and ensure that governments’ laws are in line with accepted human rights standards. Where human rights have been abused, States are expected to provide effective remedies, which are often adjudicated upon in a courtroom. While justice for human rights abused may be reached through the legal system, the question arises as to who may access justice?
The ability to access justice often requires legal assistance and this depends on a person’s financial capacity. In the past, state assistance, in the form of legal aid, was relatively easily accessible to assist persons with limited financial resources. However, legal aid is being curtailed and cut through the Legal Aid, Punishment and Sentencing of Offenders Act 2012 (LAPSO). This is having a drastic impact on women’s access to justice in particular, leaving one of the most marginalised sections of our society – black and minority ethnic women – even more vulnerable to abuse with less possibility of redress.
Nevertheless, the most worrying prospect is that the UK Government has extended its attacks on legal aid beyond LAPSO. For example, while the changes introduced by LAPSO contained special provision to protect victim-survivors of domestic violence, the new proposals, issued in 2013, contain no such protection. In fact, the current proposals would drastically disadvantage minority and migrant women, particularly victim-survivors of domestic violence and trafficking, and migrant domestic workers, forcing them to make impossible choices, often between continued abuse and deportation.
At the UK’s examination by the CEDAW in July 2013, the Committee expressed concern at the proposals and their effects on minority women. In fact, the Committee was so concerned about the row-back of legal aid that in its Concluding Observations it requested the UK to report back on the state of legal aid within two years – two years before the next reporting period – signalling the level of seriousness with which they are approaching the issue. Indeed the Committee’s interest in this area was apparent earlier this year when it held a day of general discussion on access to justice.
While these proposed changes will not apply to Northern Ireland, it is possible, even likely, that the Northern Ireland Department of Justice (DOJNI) will seek to implement many of the same changes in the future – as it is already in a process of ‘reforming’ legal aid. In 2011 Justice Minister David Ford said there would be no reduction in scope for legal aid in Northern Ireland; however this is being kept under review. If the current reforms, which have so far largely affected the way legal aid is paid to lawyers, don’t achieve the desired cost-cutting effects, the Access to Justice Review (DOJNI August 2011) includes a ‘Plan B’, which would include a reduction in scope. There was also a recent consultation on reform of Financial Eligibility for legal aid (June 2013). Thus while LAPSO will not affect Northern Ireland in the short term, its introduction is a worrying harbinger of what may be coming.
The reforms and their impact
The proposed legal aid cuts will have a huge impact on nearly all areas of BME women’s lives, because it will directly impact their ability to get justice; for example they may not be able to challenge welfare benefits and housing decisions, family law issues, and immigration decisions, because they may no longer be able to afford a solicitor (‘Legal aid cuts will deny vulnerable women justice,’ The Guardian, June 2013; see also the Alliance for Legal Aid). Detailed below are some of the ways in which it may specifically impact upon migrant and minority ethnic women.
No legal aid for prison law issues
The proposals would severely restrict access to criminal legal aid for those already in prison. According to the Southall Black Sisters (SBS), a leading organisation on minority women’s rights issues based in London with expertise in immigration and violence against women, this will adversely impact foreign national women, “whose vulnerability is heightened by their isolation, lack of English and awareness of the system”, according to the (SBS Response to Ministry for Justice consultation on ‘Transforming Legal Aid,’ June 2013). There is also a danger that this could include victims of trafficking, who have been (wrongly) convicted of crimes they were forced to commit while trafficked (Guardian, June 2013), and, as SBS case files show, women who are victim-survivors of domestic violence. In their legal aid consultation SBS use the case of Zoora Shah, a Pakistani woman who murdered her long-term partner after prolonged economic and sexual abuse. Though her appeal was unsuccessful, it did lead to a shortening of her sentence. However, while in prison the authorities failed to provide Shah with rehabilitation services, greatly undercutting her chances at parole. Over a number of years, with access to legal aid representation and advice, Shah was eventually rehabilitated and paroled. As SBS details, “under the current proposal women like Zoora Shah will not be able to utilize effectively the prison complaints or ombudsman system to challenge unfair treatment.”
The residence test
There are two important aspects to the proposed residence test. In order to be eligible for legal aid at the time of application, the applicant must:
1) Be ‘lawfully resident’ in the UK. This means that those who aren’t, like overstayers or failed asylum seekers, could not apply. It also means that you must be in the UK in order to apply;
2) Have resided lawfully in the UK for at least 12 months continuously at some point in their life.
It is easy to see how the residency test would have a discriminatory impact on thousands of vulnerable people, including minority and migrant women. It also has the potential to have a disproportionate impact on victim-survivors of domestic violence, victim-survivors of trafficking, and migrant domestic workers. At the time of writing, there is no proposed exemption for victims of trafficking (who may or may not be claiming asylum), of domestic violence or of forced marriage. Also, as mentioned above, access to legal aid cuts across a number of issues, including domestic violence, community care, family law, access to benefits and immigration issues.
While there is not scope here to go into great detail, a few examples illustrate the potential dangers for minority and migrant women if the proposed residence test goes ahead.
According to SBS, many women who come to the UK as the spouses or durable partners of British nationals or settled persons experience domestic violence within the first 12 months of their arrival (87 per cent according to SBS files over the last three years). However, under the proposed reforms, these women would not have access to legal aid to help them gain protective orders or initiate wardship or divorce proceedings, and would have to shoulder the cost of these themselves. For many, one aspect of domestic abuse is financial, and thus the ability of these women to shoulder the cost of their own legal representation is unlikely.
Many women also become ‘overstayers’ through no fault of their own; SBS explains that in many domestic abuse scenarios the abusers deliberately keep women’s documents from them, preventing them from regularizing their immigration statuses as an element of control. As overstayers, “they would not be able to make applications under the Domestic Violence Rule, seek protection orders from the family courts or challenge the police where there is a failure to protect them as victims of domestic violence” (SBS 2013). These women as well would have extremely limited ability to seek justice under the residence test, while perpetrators will be able to act with impunity, knowing their victims have little opportunity of escape or redress.
Undermining the DV and the DDV
In 2002, the ‘Domestic Violence Rule’ (DV) was introduced to the Immigration Rules. It allowed for overseas spouses who wished to leave their relationship due to domestic violence, before the end of the 12-month probationary period, to remain and settle in the UK. However, pending an application under the DV, many women fell into destitution and homelessness due to a lack of access to public funds. In 2012, the Destitution and Domestic Violence Concession (DDV) was enacted, allowing access to benefits and housing to victims of domestic violence who have an insecure immigration status, pending their application for settlement under the DV. This has been a lifeline for many women.
However, under the proposed residence test, many women who are eligible may be unable to get the legal advice and guidance needed to make an application under the DV, and may once again have to remain in abusive relationships.
Migrant domestic workers and trafficking cases
It is not uncommon for migrant domestic workers to find themselves in a similar situation to other abused women with regards to overstaying their visa. One method of control and exploitation that employers sometimes exert over migrant domestic workers is to confiscate their passports and documents, refusing to regularize their immigration status.
Trafficking victims who do not claim asylum will also be unable to access legal aid (there is an exception in the proposals for victim-survivors of trafficking who seek asylum), for example to challenge a decision by the National Referral Mechanism (NRM). Moreover, as SBS explains, the residence test will have negative consequences for trafficking women “contrary to the UK’s obligations under articles 12 and 15 of the Council of Europe Convention on Action against Trafficking in Human Beings, which requires states to provide legal advice and information to victims and free legal aid to enable them to seek redress for the harm they have experienced” (SBS 2013).
In each of these scenarios, the women face a nearly impossible choice: stay in an abusive or exploitative situation until (and if) they become eligible for legal aid, or leave, and risk destitution and deportation. Furthermore, the ability to challenge decisions of public authorities, such as those granting welfare benefits or housing, or immigration officials, would also be greatly limited in these circumstances, particularly for women with no recourse to public funds.
NICEM’s research into violence against BME women in Northern Ireland (profiled on pg ____) uncovered several incidents of statutory agencies either greatly delaying decisions for benefits for BME women, or failing to deal with them at all. In one example, a family with three children had been purchased one-way plane tickets to their country of origin, instead of housing, which is what they required. The mother in this case had been a victim of domestic violence by a former partner in the country of origin and did not wish to return. It was noted in this case that the value of the plane tickets could have placed the family in emergency accommodation until suitable long-term housing was found.
Likewise, SBS’ cases show that it is often not until judicial proceedings are threatened or commenced that statutory bodies are forced to overturn wrong decisions. The Law Centre of Northern Ireland (LCNI) also indicated that notification of an intent to seek judicial review, or a Pre Action Letter, would be fairly typical legal practice, and that the issuing of these letters is often enough to reverse a bad decision. The Law Centre notes that, to be effective, it is essential that such action has a strong legal basis and that follow-up legal action is viable (i.e. that judicial review proceedings will be taken). Under the new proposals, there will be no legal aid for judicial review, or for cases that do not have at least a 50 per cent chance of success (SBS 2013). This will severely impact upon women with insecure immigration status’ ability to challenge wrongful decisions by public authorities.
Community and faith-based justice
As illustrated in NICEM’s research (pg ___ in this edition), a culturally relativist approach to violence experienced by BME women is common, both for government and for statutory agencies. Sharon Smee, writing in Rehman et al (2013) explains that “violence against BME women is frequently defined in ‘cultural’ terms so that their experiences are segregated from wider responses to gender-based violence.” It is this approach that often abandons BME victim-survivors of domestic violence to ‘community’ justice, seeing the experience as ‘cultural,’ rather than locating it on the continuum of violence against women and providing for proper redress and protection through the legal system.
One of the CEDAW Committee’s specific concerns around the new legal aid proposals was that ethnic minority women would be pushed “into informal community arbitration systems, including faith-based tribunals, which are often not in conformity with the Convention” (CEDAW Concluding Observations 2013 para. 22).
Pragna Patel, in Rehman et al (2013), details some of these community- and faith-based systems, and their development in a context that justifies and excuses violence against women. Because they are arbitrating based on religious law, their processes and judgments may be in breach of international human rights standards, and unlawful, and yet will never be scrutinised by the courts (pg 54). States can still be held accountable for breaches of human rights that are ‘adjudicated’ through these community or religious forums; it is precisely this that CEDAW Committee is concerned about and reminds the UK of in its Concluding Observations.
Conclusion: Who can access justice?
It was quite clear to the CEDAW Committee, given the number of times their raised concerns during the hearing, that the impending legal aid reforms will have a significant negative impact upon minority women’s access to justice, if passed in their current form. Campaigns against the cuts and reforms have sprung from many quarters, from lawyers groups to civil liberties campaigners to advice providers, from prisoners’ rights groups to women’s rights organisations.
What is striking about these, and perhaps best illustrates the often-unnoticed problem of the intersectionality facing minority women, was highlighted by Kate Blagojevic of Detention Action writing in OpenDemocracy in July 2013. She noted that “many campaigners and NGOs have been wary about campaigning for the rights of migrants to access legal aid and have simply left them out of their lobbying efforts. They are undoubtedly worried about being sullied with the vitriol and ‘unwinnability’ factor that comes with standing up for ‘illegal immigrants.’ She points to the success of an online petition against the legal aid reforms, which reads: “The MOJ should not proceed with their plans to reduce access to justice by depriving citizens of legal aid or the right to representation by the solicitor of their choice” (emphasis added).
It is likely that this was not intentional, but with all the difficulties around the residence test detailed above, it is vital that migrants are not left out of efforts to stem the tide of legal aid cuts, and that their access justice is preserved as well. Without it, the lives of already vulnerable minority and migrant women will become that much harder, and will have a little less prospect of challenging injustices visited upon them.
Elizabeth Nelson, Parliamentary and Campaigns Officer, NICEM